You’ve Heard of a Prenup, But What is a Postnup?

Many people are familiar with prenuptial agreements, as an agreement entered prior to marriage, designed to protect spouses in the event of a divorce. But what exactly is a postnuptial agreement? The short definition of a postnuptial agreement is a written agreement entered into by spouses after a marriage, defining the division of assets, debts and spousal support in the event of death or dissolution. Essentially it functions just like a prenuptial agreement, but is entered into after marriage. A postnuptial agreement can be entered into anywhere from the day after the marriage to many years down the road.

One essential difference between a prenuptial agreement and a postnuptial agreement is that postnuptial agreements are more heavily scrutinized by the courts for fairness, due to the confidential relationship between spouses. In order to enter a valid postnuptial agreement several requirements must be met:

• Written Agreement: The agreement must be written and signed by both spouses.

• Voluntarily Signed: The agreement must be entered into freely, without fraud, duress, or coercion.

• Full and Fair Financial Disclosure: Both spouses must provide a complete disclosure of all assets, liabilities and income to each other.

• Fairness: The agreement must not be “unconscionable”. Florida courts can invalidate an agreement if it is deemed unreasonable or unfair to one spouse.

A postnuptial agreement can extremely beneficial in creating stability and comfort in a marriage, particularly if there have been changed financial circumstances. It can set expectations and help spouses feel more at ease by having honest conversations and working through issues that may cause uncertainty and tension. In some instances a post-nuptial agreement may adequately address marital concerns spouses are facing in order to avoid a divorce.

What can and can’t be included in a postnuptial agreement?

A postnup can help spouses protect premarital assets, to prevent them from becoming marital property. It can address existing debt and establish how alimony will be handled in the event of a divorce. Postnuptial agreements can be particularly helpful if one spouse owns a business and has concerns over keeping the business separate property in the event of a divorce. Both prenuptial and postnuptial agreements can address how future assets will be treated, including assets that increase in value during a marriage.

Florida law does not permit non-financial matters to be included in a postnup. These prohibitions include child support, time sharing, and parental responsibility, which will always be determined based on the best interests of the child.

What information will be needed to get started?

The basic information needed in order to begin the process of formulating a prenuptial or post nuptial agreement is as follows:

• A list of all assets (including any real estate, savings, checking and retirement accounts)

• A list of all debts (mortgages, loans, credit cards, and business debts)

• Most recent account statements

• Information regarding income and expenses.

The most important consideration, especially with a postnuptial agreement, is each spouse making a full and fair disclosure to the other. You should consult with an attorney to discuss whether a postnuptial agreement will be beneficial in your unique situation and how the process will work from consultation to signing. Contact Cody Law if you’s like to discuss your options and explore the benefits of a postnuptial or prenuptial agreement.

5 Common Mistakes to Avoid During a Divorce

Tensions can often be high during a divorce. It’s important to tread carefully and be aware of your rights and responsibilities during this difficult time. Speaking with a family law attorney can help you choose the best course of action and avoid these common pitfalls.

1. Sending Disparaging Texts or Emails:

   Hold the phone! Text messages, emails and social media posts can be used against you in Court by your ex, to attack your credibility and character. Your words and actions are a huge factor in the Court's consideration of the best interests of any child or children involved in a Family Law matter.

2. Going Pro Se:

   Understanding your rights and obligations is key. A Family Law attorney will guide you through this process and ensure you reach a fair separation agreement or court settlement.

3. Not Putting the Kids First:

   In all Family Law matters involving minor children, the Court will look to the best interests of the child in making decisions regarding time sharing and parental responsibility. Making decisions based on resentment toward the other parent is never in the best interests of the child and will not work in your favor in the eyes of the court.

4. Moving Out of The Marital Home:

   While you should not stay in the marital home if you fear for your safety, moving out could complicate your claim to an interest in the home. If possible, before moving out of the home you should consult an attorney and ensure there is a parenting schedule in place, where there are children involved, to make sure you have continuing access to the children.

5. Hiding or Depleting Marital Assets:

   In every dissolution of marriage, the parties to the dissolution will make a full financial disclosure. The court will review and determine the marital and non-marital assets. In doing so the court can look at transactions after filing for dissolution and up to two years prior to the filing, for any intentional dissipation, waste, depletion or destruction of marital assets.

   Contact Cody Law to schedule a consultation if you need help navigating divorce or any Florida family law issue.

All About Extracurriculars

Parents of minor children who are facing a divorce or paternity matter often ask how to handle extracurricular activities. When seeking a paternity order or a dissolution of marriage with minor children, the end result is that a parenting plan is entered into. The parenting plan can be as detailed as the parties desire and should include as much detail as possible, particularly when there is a potential for conflict down the road. One detail a parenting plan will typically include is a section addressing how extracurriculars are to be handled.

Extracurricular activities are not factored into the calculation of child support. Payment for extracurriculars is addressed separately under the extracurricular provision in the plan. Most parents choose to include the provision that the cost of agreed upon extracurriculars will be split 50/50 between each parent. If there is a disparity in income or the case is contested then the costs of extracurriculars may be split according to the parties’ pro rata share of responsibility for child support.

The provision will typically state that the parents should attempt to agree regarding any extracurricular activities and when the parents cannot mutually agree, then one parent may unilaterally enroll the child during their timesharing and bear the full cost, including associated costs such as uniforms and costumes. A good parenting plan should also detail who will be responsible for transportation to and from each activity. If parents know that a certain activity is going to be a cause of conflict in the future, they can address it in the parenting plan in advance. For example, parents may want to specifically provide for, or limit or restrict travel sports, or sports they consider dangerous. They may also choose to agree on a set limit of how many extracurricular activities a child should participate in each year.

In general, the nature of a lot of extracurricular activities means that practices, lessons or events will occur during both parent’s time. However, parents should avoid unreasonably infringing on the other parent’s time with the child to avoid ending up back in court. When issues arise involving extracurricular activities the court will always consider the best interests of the child in resolving disputes. The best case scenario for parents is setting aside personal differences with the other parent and considering what the child enjoys and wants to participate in, rather than unreasonably refusing to agree on an extracurricular activity.

If you are facing challenges with this issue, or any other family law matter please reach out to Cody Law for a consultation.

Holla “We Want Prenup, We Want Prenup”: Florida Prenuptial and Postnuptial Agreements

A Premarital agreement, known as a prenuptial agreement or “Prenup” is a contract couples sign prior to marriage, to become effective upon marriage to each other. The Prenup can determine what will happen if the couple divorces, including provisions for distribution of assets, debts, alimony, and other issues. A well executed prenup will set forth the terms of the divorce, rather than leaving those terms in the hands of the judge to decide.

A postnuptial agreement “Postnup” is essentially a different means to the same end. The difference is that a postnuptial agreement is executed sometime after the parties have married and there must be separate consideration to make the agreement binding.

Some of the benefits of prenups and postnups are avoiding costly litigation and stress if the marriage ends in divorce. Issues that cannot be decided in a prenup are child custody (in Florida this is known as parental responsibility and timesharing) and child support. These are considered rights of the children in Florida and cannot be waived.

Florida has adopted the Uniform Premarital Agreement Act, which expressly provides that parties may reach a binding contract on issues including:

• the parties’ rights and obligations concerning any assets and debts;

• the right to buy, sell, use, transfer, or dispose of property;

• Distribution of property in the event of separation, divorce or death;

• the right to alimony;

• the making of wills or trusts;

• disposition of proceeds from life insurance;

• Choice of law governing the premarital agreement.

To be valid, the prenuptial or postnuptial agreement must be entered voluntarily, without coercion or duress and must not be unconscionable. There there must have been a fair and adequate financial disclosure beforehand. When entering a prenup or postnup, each party must be separately represented.

If you are contemplating marriage, or already married, and believe you could benefit from a prenuptial or postnuptial agreement, contact our office to discuss the process.